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In anticipation of TNT’s upcoming legal dramedy “Franklin & Bash,” which premiers tomorrow night at 9 p.m. Eastern, we had the opportunity to fulfill a lifelong dream briefly interview the two stars of the show, Mark-Paul Gosselaar and Breckin Meyer (during a multi-party press conference, but still). Gosselaar is famous, of course, for playing the iconic character of Zack Morris in “Saved by the Bell” and, more recently, for his role on “NYPD Blue.” As for Meyer, you may recognize him as the skateboarding high school student in Clueless or for his roles in Road Trip or Can’t Hardly Wait. So, once again, we here at Abnormal Use continue our series, “Abnormal Interviews,” in which we bring you interviews with practitioners, commentators, and, now, actors.

“Franklin & Bash” is a comedy featuring Gosselaar and Meyer as two small-time lawyers with big-time courtoom antics who are recruited by a powerful megafirm. So begins their fish-out-of-water experience, which is the central premise of the show. Both stars seem to be very exited about their new legal show, and for good reason. By their own accounts, they’re having fun filming the series, and as you’ll see from our review of the pilot episode tomorrow, the show offers its viewers an entertaining – though not necessarily realistic – glimpse into the lives of its fictional young lawyers.

As mentioned above, we were on a multi-party press conference call with Gosselaar, and then some time later, a separate multi-party call with Meyer. Accordingly, we were only able to ask each of them one question. Fortunately for you dear readers, we here at Abnormal Use are ace interviewers, and all we need is one question. Bearing in mind that caveat, the following is a full transcript of our exchange with Gosselaar, who plays attorney Peter Bash.

Simons: Hey, Mark-Paul.

Gosselaar: Hey, there.

Simons: Our readership is made up primarily of lawyers, and I know that you’ve played lawyers in the past, but I wondered what, if anything, you did to prepare for this role.

Gosselaar: I got a tan. That’s basically it. You know, I mean, I – you know, I’d had my legal fill when I did “Raising The Bar.” Thankfully, you know, I was able to go with David Feige, who was the creator of that show, and my character was loosely based on him. You know, I went with him and was an intern at the Bronx Defenders for about a week and sort of got my legal, you know, insight during that week, and for the last two seasons. So no, there wasn’t much that I had to question.

But if I did have a question, one of our producers and writers, one of our head writers, Bill Chais, was a defense attorney and a lot of the stories that we deal with on the show are from his background. So, if we ever have questions we have people that we can go to, and that’s always important. And well, I think we’re pretty true to – I mean obviously it’s television, you take some liberties, but I think we’re pretty true to staying true to the sort of legal, call it, the legal frame.

During an earlier part of the call, Gosselaar also shared what makes “Franklin and Bash” different from all the other legal dramas viewers have seen before on the small-screen:

Gosselaar: Well, I think — you know, we haven’t seen comedy in the courtroom in a while. I mean, “Boston Legal” is probably the last one, “Ally McBeal” is another one, “L.A. Law” was a brilliant legal drama with elements of comedy, so I think that’s what sets it apart from what’s currently on television, as well as sort of the relationship between the two guys.

You know, you go home with these characters at the end of the day, so I think that that’s a very important element that isn’t on television on your typical legal dramas at the moment.

Later that afternoon, we joined the press conference call with Breckin Meyer, who plays attorney Jared Franklin on the series. Here’s a transcript of our interview with him:

Simons: Hi, Breckin.

Meyer: Hey, how’s it going?

Simons: Good. Our readership is made up primarily of lawyers…

Meyer: Okay.

Simons: . . . I wonder if I were a client of Franklin and Bash, why would I want your character, Jared, to represent me?

Meyer: Well, the good thing is with Franklin and Bash, you get both Franklin and Bash. . . . Jared’s a kid who grew up with a silver spoon in his mouth. His father was a — still is a high powered litigator, and he rebelled against that by not wanting to be a lawyer, but eventually had to accept that it was his calling, but if he’s going to do it he’s going to do it on his own terms. And I think you’d definitely — you’d get lawyering like you hadn’t seen before. How about that?

Simons: Okay. And your character’s been described as quick-witted and scrappy. Do you have anything to add to that description?

Meyer: Really kind of almost off the chart remarkably good looking. That — I mean that’s not me, that what — I mean, that’s what I’ve heard. . . .Yes, so that’s how I’d describe it.

Turn back to Abnormal Use tomorrow for our official review of the pilot, which airs tomorrow night on TNT.

We here at Abnormal Use and Gallivan, White, & Boyd, P.A. wish you a fine Memorial Day weekend. We pause today to reflect upon all of the sacrifices made by American servicemen and women and all they have done for the country, both in present times and years past. (By the way, depicted above is the cover of the first issue of The ‘Nam, published way back in 1986. The series was an effort by Marvel Comics to depict the reality of that war – a difficult task in light of the strictures of the Comics Code Authority at the time.).

With all the confusion about whether or not Superman is a state actor, we wonder whether or not he should be the one questioning an imprisoned Lois Lane in jail about her guilt or innocence in an apparent counterfeit license plate making scheme. Such is the dilemma posed on the cover of Superman’s Girlfriend Lois Lane #6, depicted above and published way back in 1959. Surely, though, with her knowledge of Superman and the Justice League, Lois could have found a more interesting – and more profitable – criminal enterprise than phony license plates. (Our favorite part: Note the stern face of the prison guard who is apparently glowering at the convict Lois.).

Earlier this year, we interviewed Hollywood showrunner Michael Sardo, the creator of USA’s dramady “Fairly Legal,” a show about a former lawyer turned mediator. Well, according to this post at Deadline Hollywood, it appears that the series is being creatively reworked for its upcoming second season and Sardo will no longer be as involved with the series. (Check out the full transcript of our interview with Sardo here.).

Over at The Business Law Prof Blog, Joshua P. Fershee pauses to reflect upon how some courts have referenced Bob Dylan’s lyrics in their opinions. Don’t forget: It was Dylan’s 70th birthday this past week. We can’t say we’ve ever encountered a court quoting Dylan lyrics, though again, we simply must direct you to the Fifth Circuit’s Talking Heads opinion from way back in 1987. (Oh, and for more Bob Dylan, since this recent blog piece from The New York Times ArtsBeat blog which revisits a 1966 interview with Dylan).

Last week, we heard an NPR story about a Wacky Warning Label Contest put on by a man named Bob Dorigo Jones, a Senior Fellow at the Center for America. According to its website, the Center for America’s mission is “to educate, motivate, and empower Americans to expand skills, entrepreneurship, prosperity and freedom.”

The contest works like this: People submit entries for the product warning labels which “entertain[] and alarm[] the nation about the lawsuit-happy culture and the lengths to which companies must go to avoid lawsuits.” People can venture online and vote for their favorites, and there are even cash prizes for the contest winners. We here at Abnormal Use like the concept of this contest: highlighting the ridiculous lengths to which manufacturers must go to protect themselves from lawsuits, and to protect people from their own lack of common sense.

For instance, here is one of the finalists:

You can view all of this year’s finalists here. The contest has been going on for fourteen years. Some information about the 2010 contest can be found here. The winners of the 2011 contest will be announced in June. We can’t wait, and we’ll be sure to let you know which warning label wins. In the meantime, we’d like to hear your thoughts about the most absurd warning labels you’ve encountered, either as a consumer or legal professional.

On The Discovery Channel’s Man vs. Wild, Bear Grylls travels to some of the globe’s most remote areas to demonstrate how a stranded traveler might survive. Notable among Grylls’ survival techniques is his penchant to catch and eat snakes – raw. Raw snake does not sound appetizing to our sophisticated palates, but allow me to commend Grylls for demonstrating the benefits of consuming meat in its most natural form. While these animalistic methods might be useful on Man vs. Wild, North Carolina isn’t buying it.

Last week, our friends at Overlawyered alerted us to a law in North Carolina which makes serving rare or medium-rare hamburgers illegal. According to this report from America Online, the North Carolina Division of Environmental Health requires that restaurants cook ground beef to an internal temperature of 155 degrees Fahrenheit. The restriction, which does not apply to steaks, has been implemented to reduce the likelihood of Salmonella and Escherichia coli O157:H7.

While we admit that the sight of a bleeding piece of meat may actually be less appetizing than a live snake, we must question the necessity of the North Carolina regulation. There is no fault in trying to protect the health and safety of your citizens, and there is no disputing the contamination concerns of ground beef. However, it seems a little un-American to dictate how a hamburger is to served . We need to check with Justice Scalia, but certainly the Framers of our Constitution intended free hamburger choice to be an inalienable right.

North Carolina has considered adopting the United States Food and Drug Administration standard which allows restaurants to serve rare and medium-rare hamburgers so long as a disclaimer is printed on the menus. While we support giving individuals the choice of meat preparedness, by doing this, it appears that North Carolina is more concerned about restaurant liability than citizen health. Apparently, the potential for food poisoning can be overlooked as long as you are aware that you are assuming the risk.

We here at Abnormal Use do not believe that Bear Grylls would recommend eating raw food on a regular basis when properly prepared options are available. In the case of the hamburger, however, we do feel that Americans should have a choice. If raw meat is good enough for Grylls, certainly a rare hamburger is good enough for North Carolinians.

Last week, it was announced that Circle K Stores, Inc. and Mac’s Convenience Stores LLC have reached an agreement with attorneys general for 39 states and the District of Columbia to cut-down on the sales of tobacco products to minors. (See copy of the 22-page agreement here). The agreement, which does not include South Carolina, encompasses approximately 4,000 convenience stores. The agreement goes into effect on June 1, 2011. Previous multi-state agreements have similarly been reached between states and convenience stores selling fuel under Conoco, BP, Exxon, Mobil, and Shell, among others, and with retail and pharmacy chains Walgreens, Rite Aid, CVS, WalMart, Kroger, and 7-Eleven.

The agreement, called the “Assurance of Voluntary Compliance” (AVC), provides that Circle K will adopt procedures intended to reduce the amount of marketing and sales of cigarettes to minors, and additional procedures designed to curb underage tobacco sales. Terms of the agreement include:

1. Clerks must check the IDs of all persons who appear to be under the age of 30 to avoid illegal sales based on appearance;
2. In-store advertising of tobacco must be limited in ways intended to reduce the effect on young people, and outdoor advertising of tobacco must eliminated at stores within 500 feet of playgrounds or schools;
3. Employee training will focus on the mechanics of eliminating underage tobacco sales and on emphasizing the serious health issues that give rise to the legal efforts to restrict underage access to tobacco products;
4. Circle K will test itself on these safeguards by conducting “mystery shopper” compliance checks at 500 of its stores every 6 months;
5. Circle K will pay the attorneys general a total of $225,000 to be used for consumer education, public protection, or the implementation of programs to protect against tobacco abuse by minors.

Both the AVC agreement and the individual statements of the attorneys general (see here, for example) note that more than 2,000 children per day begin smoking cigarettes and that 1/3 of those will one day die from a tobacco-related disease. It is estimated that 690 million packs of cigarettes are sold illegally to children in the United States per year.

Earlier this month, the U.S. District Court for the Northern District of Georgia considered the case of Kersey v. Dolgencorp LLC, No. 1:09-CV-898-RWS, 2011 WL 1670886 (N.D. Ga. May 3, 2011). The case involved a tube of Dollar General Maximum Strength Muscle Rub Cream, which was manufactured by defendant Faria and sold under the Dollar General brand. The Plaintiff brought suit against both Dollar General and Faria, alleging that the rub cream caused her to develop multiple diabetic ulcers secondary to chemical burns. Ms. Kersey had been diagnosed with diabetes in 1994, which caused her to have severe diabetic neuropathy in her feet. She had been using the rub cream since 2006 or 2007; these alleged injuries occurred in 2008.

The lawsuit alleged four causes of action against Faria and Dollar General, including (1) negligence, (2) strict liability, (3) breach of express warranty, and (4) breach of implied warranty. Both defendants moved for summary judgment. Plaintiff abandoned all of her claims against Dollar General, as well as the breach of warranty claims against Faria prior to the hearing on Defendants’ motion and, therefore, the court granted the Defendants’ summary judgment motions as to those claims.

The court discussed three claims alleged by Plaintiff in turn: design defect, manufacturing defect, and failure to warn. The court granted Faria’s summary judgment motion as to the design defect. First, it noted that Plaintiff had not even discussed the rub cream’s design, and because she had not presented any evidence of the product’s inherent risks, nor presented an alternative design. The court also noted that the rub cream had been tested by the Food and Drug Administration and determined its composition to be safe and effective.

The court also granted Faria’s motion for summary judgment based on the theory of the manufacturing defect. Plaintiff had not even had the product tested to back up any allegation she may have had that the particular tube of the rub cream was stronger or weaker than the standard formula. No genuine issue of material fact there.

Finally, the court considered the failure to warn claim. The warnings on the box containing the rub cream read as follows:

— For external use only.
— Use only as directed.
— Keep out of reach of children to avoid accidental poisoning.
— Discontinue use if excessive irritation o[f] the skin develops.
— Do not bandage tightly, apply to wounds or damaged skin or use with a
heating pad.
— If condition worsens, of if symptoms persist for more than 7 days or
clear-up and occur again within a few days, discontinue use of this product and
consult a doctor.
— If swallowed, get medical help or contact a Poison Control Center right
away.

The court made a number of findings before granting Faria’s motion for summary judgment on this theory. First, Plaintiff’s doctors stated only that Faria should have known that the rub cream would have been absorbed by the skin, not that this phenomenon would be injurious to diabetics. Second, this was the very first complaint that Faria had ever received about the product after it had manufactured more than 8 million tubes of the cream. Finally, the court noted that Plaintiff had developed these injuries after using the cream and then putting on socks and shoes, which the court found to violate the warning on the box that advises against bandaging skin after using the product.

The final cautionary note can be found in the case’s only footnote, where the Court indicated without even being asked that Plaintiff’s case had “a strong proximate causation problem.” Indeed, Plaintiff had suffered diabetic-related foot injuries before and after this alleged incident, and had been using the product without incident for years before suffering these particular injuries. Plaintiff’s doctor also testified that he could not testify that, to a reasonable degree of medical certainty, that the complained-of injuries were caused by the rub cream at all.

Ah, trials. We dig them, but we can’t say that we’ve ever objected to an opponent’s question on the grounds that the attorney is attempting to confuse a client, particularly when the question at issue is as stratightforward as “Have you ever heard the word ‘school-house’?” In our mind that question does not prompt confusion or puzzlement, but such is the objection made by the attorney on the cover of the above referenced issue of Crime Detective Comics. Isn’t it just a yes or no question? Oh, well.

Our home office is in South Carolina, and we just opened an office in Charlotte, North Carolina, so we are always mindful when North Carolina makes legal news. So, when we saw the headline “North Carolina’s Rare Burger Ban Makes Red Meat Illegal” over at Overlawyered, we couldn’t help but investigate.

Friend of the blog Evan Schaeffer over at Beyond the Underground analyzes the issue of email spam directed at lawyers. We are sympathetic to his plight, as we are often deluged with unsolicited commercial email.

Today is the second anniversary of the birth of Brian Comer’s South Carolina Products Liability Law Blog, which ran its first four posts on May 20, 2009. Check out Brian’s first “Welcome!” post here. Happy birthday!

We’re big fans of the Findlaw Legal Grounds law blog, and so, we simply couldn’t resist pointing this story abot a Michigan man, clad as Batman of all things, who was apprehended by authorities while hanging from a roof. Criminal proceedings have been instituted against him, but will there be litigation?

I used to have a professor who would say something like, “The best way to win a lawsuit is on a technicality.” I think what he was getting at (as all law professors force you to guess what they are getting at, rather than actually coming out and saying what they are getting at) is that it is much easier to win and defend on appeal a clear procedural decision. The converse of that is, the worst way to lose a lawsuit is on a technicality. Even worse, it is absolutely no fun at all to explain to a client that you lost a lawsuit because of a technicality. Today, through Chow v. Reckitt & Colman, Inc., No. 81, 2011 WL 1752234 (N.Y. May 10, 2011) [PDF], we are reminded that procedure matters.

I think we can all agree that drain cleaner is dangerous and can cause physical harm if not used correctly. After all, anything that will eat through grease, hair, and other sludge would probably taint the delicate skin of a lawyer. In Chow, a restaurant employee used Red Devil Lye to clear a drain in a Manhattan restaurant and was injured during that task. There was no problem dispensing with the failure to warn claim, but the design defect claim was a different issue. In its motion for summary judgment, the defendant said something like, “C’mon, this is lye. We buy it specifically because it devours sludge. It’s dangerous because it has to be dangerous to do its job. ” But the Court of Appeals denied summary judgment. New York rules require the movant to produce evidence at the summary judgment stage in order to perform the risk-utility test. There was no such evidence in the record. On this point, the Court of Appeals noted as follows:

[D]efendants, in support of their summary judgment motion, produced no evidence of the absence of a safer but functionally equivalent alternative to lye. Defendants relied simply on a statement in an attorney’s affirmation that “the product at issue … cannot be designed differently without making it into an entirely different product” (emphasis omitted). The burden of making the necessary evidentiary showing might not have been hard to meet: an affidavit from someone knowledgeable in the industry—either a retained expert or an employee of one of the defendants—could have done it. But the burden was not met.

In other words, the defendant couldn’t just point to the absence of evidence for the plaintiff’s case. Indeed, the court was clear that the plaintiff could not win at trial on the evidence before the court, and at trial, a directed verdict would be proper. Nevertheless, New York procedure requires the submission of evidence in cases at the summary judgment stage in cases such as these. It was not enough to say that the product was dangerous by nature, but proof that there was no functionally equivalent safer alternative was necessary.

So, the lesson for today is, we must look at all of our cases and think about how we could lose them. There are entire blogs about frivolous lawsuits, and defense lawyers are notorious for thinking that at least half of all lawsuits are trumped up lottery tickets. Nevertheless, not looking at the motion critically had some real consequences in Chow. But the plaintiff’s lawyer did what he intended to do, which is survive summary judgment. Don’t take your cases for granted, defense lawyers. An overlooked procedural detail may bite you.

A San Diego mother of two young children recently filed a class-action suit in California federal court against Chuck E. Cheese’s, in which she alleges that the restaurant chain’s gaming machines are actually illegal gambling devices which could “foster addictive behavior in children by enticing them to play repeatedly for tickets.” Although she seeks $5 million in damages, SignOnSanDiego.comreports that her attorney says the money is secondary to his client, who primarily wants to see the gaming machines removed from the restaurants.

The attorney for the plaintiff, Eric Benink, reportedly has said he does not think that “children should be exposed to casino-style gambling devices at an arcade.” The complaint notes that with some exceptions, gambling is illegal in the state of California, although an exception is made for games that are based predominantly on skill. Here, the complaint (boldly) alleges, the games are based largely on chance and “create the same highs and lows experienced by adults who gamble their paychecks or the mortgage payment.” The games, of course, rely mostly on 25-cent tokens and, depending on the player’s score, dispense tickets that can be redeemed for prizes. The higher the player’s score, the greater number of tickets dispensed; the more tickets, the better the prize.

Attorneys for Chuck E. Cheese’s are moving to dismiss the suit on two grounds. First, they argue that the California Legislature never intended to make the operation of a children’s arcade game a criminal act. Second and more interestingly, they contend that even if the game systems were illegal, then the plaintiff parent would be an admitted participant in illegal gambling and therefore is barred from seeking damages and restitution.

AOL Newsquotes one supporter of the lawsuit, whose daughter is “addicted” to the “Claw,” as saying: “We have left Chuck E. Cheese’s in her [sic] in tears begging for one more quarter. I’ve seen her going through my purse for quarters. It’s devastating.” This latest lawsuit seems to serve as one more example of a lack of accountability of parents, who certainly have the option of keeping their children away from institutions that lure them into developing “gambling habits,” without the necessity of litigation.